seafarer's diet and colon/ colorectal cancer

The interplay of dietary factors, age and  working environment  while at sea contribute to the development of    colon cancer among seafarers.

The Supreme Court ruled in the case of Skippers vs. Lagne ( G.R. No. 217036 August 20, 2018 ) that  rectal illness is compensable for permanent and total disability due to his dietary provisions.

Colon cancer, also known as colorectal cancer or large bowel cancer, includes cancerous growths in the colon, rectum and appendix. Colorectal cancer can invade and damage adjacent tissues and organs. Cancer cells can also break away and spread to other parts of the body (such as liver and lung) where new tumors form.

Companies usually deny liability for payment of disability or death benefits since there only three  types of cancers  listed as occupational diseases under the POEA Standard Employment Contract– (1) Cancer of the epithelial lining of the bladder (papilloma of the bladder); (2) cancer, epithellematous or ulceration of the skin or of the corneal surface of the eye due to tar, pitch, bitumen, mineral oil or paraffin, or compound products or residues of these substances and (3) acute myeloid leukemia and chronic lymphocytic leukemia.  

 Jurisprudence provides that to establish compensability of a non-occupational disease, reasonable proof of work-connection and not direct causal relation is required. Probability, not the ultimate degree of certainty, is the test of proof in compensation proceedings.

Settled is the rule that for illness to be compensable, it is not necessary that the nature of the employment be the sole and only reason for the illness suffered by the seafarer. It is sufficient that there is a reasonable linkage between the disease suffered by the employee and his work to lead a rational mind to conclude that his work may have contributed to the establishment or, at the very least, aggravation of any pre-existing condition he might have had.

The  Supreme Court stressed that the seafarer  acquired or developed his illness during the term of his contract due to the  strenuous nature of his  job, his advanced age at the time of hiring combined with his poor diet which consists of mostly carbohydrates, high-fat, high­ cholesterol, and low-fiber foods.

His dietary provisions while at sea increased his risk of contracting colon cancer because he had no choice of what to eat on board.

Being a seafarer, the food provisions on a ship  are designed for long journeys across the oceans and seas. The food provided are mostly frozen or processed meat, and  canned goods. Seldom are there vegetables which easily rot and wilt and, therefore, impracticable for long trips.

These provisions undoubtedly contribute to the aggravation of the seafarer's rectal illness.

While there is no specific cause of colorectal cancer, the Supreme Court noted that  certain factors can increase risk of developing the disease, including diet, age and health. Diets high  in fat, red meat, total calories, and alcohol are significantly associated with the formation of cancer-causing chemicals known as carcinogens which predisposes humans to contracting the disease.

 

The compensability of colorectal cancer has also been ruled upon in the case of Leonis Navigation v. Heirs of the late Catalina V. Villamater  (G.R. No. 179169               March 3, 2010) wherein the Supreme Court noted that factors that increase a person's risk of colorectal cancer include high fat intake.  

Diets high in fat are believed to predispose humans to colorectal cancer. It is believed that the breakdown products  of fat metabolism lead to the formation of cancer-causing chemicals (carcinogens). Diets high in vegetables and high-fiber foods may rid the bowel of these carcinogens and help reduce the risk of cancer.

Living in typically confined environments on board vessels for prolonged periods of time leaves seafarers exposed to various ongoing health problems including obesity and vitamin deficiency, as they choose convenience foods heavy in sugar and salt and low in protein.  Poor diet has even been found to be a key factor in altering physiological and psychological functions, which can have a devastating impact not only on the individual but also on the smooth running of daily operations.

Seafarers are exposed to occupational risk factors, as well as environmental risk factors, as part of their normal everyday activities since they spend a large part of their lives at sea. Most seafarers live and work under extremely hazardous conditions that can cause serious short-term and long-term damage to their health. In some cases, they are exposed to conditions that can even be fatal.

 Atty. Gorecho heads the seafarers’ division of the Sapalo Velez Bundang Bulilan  law offices. For comments, email info@sapalovelez.com, or call 09175025808 or 09088665786

Spine injuries at sea

Back pains or spine injuries or illnesses are inherent in a seafarer’s  job characterized by excessive and strenuous physical activities, such as lifting, carrying, pushing, pulling and moving heavy equipment and materials.

The injury or illness may occur over a period of time or on the spot depending upon the physical strength and posture of the workers as well.   

The common back injuries or illness include lumbar spondylosis, lumbar radiculopathy, multi-level disc dessication, posterior disc herniation, or canal stenosis.

In compensation  claims, employers usually  argue that the nature of disability and the benefits are determined by the manner they are graded or classified under the POEA contract and not by the number of days that a seafarer is under treatment.  If a seafarer has an injury or medical condition that is not considered a Grade 1 impediment, then he cannot claim that he is totally or permanently disabled. To allow the contrary, they argue, would render naught the schedule of disabilities.

Under the POEA contract, Grade 1 disability grading will be given if a seafarer suffered  injury to the spinal cord  if (a) it  makes walking impossible even with the aid of a pair of crutches or (b) results to incontinence of urine and feces.

Partial disability  benefits will be given if the assessment is as follows: (a) Grade 4 if it caused walking impossible without the aid of a pair of crutches; (b) Grade 6  if he suffered fracture of the dorsal or lumber spines resulting severe or total rigidity of the trunk or total loss of lifting power of heavy objects ; (c) Grade 8 if he  suffered moderate rigidity or two thirds (2/3) loss of motion or lifting power of the trunk; and (d) Grade 11 if he  suffered slight rigidity or one third (1/3) loss of motion or lifting power of the trunk.

In some instances, any seafarer who suffered these  medical conditions is in essence should be declared total permanent disabled, and not merely partial temporary. The findings and the disability grading of a company-designated physician could be set aside in the determination of disability compensation.

The  Supreme Court  usually considers the glaring apparent inconsistency in the company doctor's medical report between the classification of seafarer's disability and the fact that he had been unable to work for long period of time, which condition makes his disability permanent and total. (Crystal Shipping, Inc. vs. Natividad, 473 SCRA 559).

Permanent total disability means disablement of a seafarer to earn wages in the same kind of work, or work of similar nature that he was trained for or accustomed to perform, or any kind of work which a person of his mentality and attainment could do. Disability need not render the seafarer absolutely helpless or feeble to be compensable; it is enough that it incapacitates to perform his customary work. (Seagull Maritime Corporation vs. Dee, 520 SCRA 109).  

If those injuries or disabilities with a disability grading from 2 to 14, hence, partial and permanent, would incapacitate a seafarer from performing his usual sea duties for a period of more than 120 or 240 days, depending on the need for further medical treatment, then he is, under legal contemplation, totally or permanently disabled (Kestrel Shipping Co., Inc. v. Munar, 689 SCRA 795)

Companies cannot deny the fact that a seafarer suffering from any of these medical conditions will be considered more of a liability than an asset if he is allowed to go on board the vessel.He would no longer be able to perform strenuous activities such as the rigorous duties of a seafarer.

The Supreme Court acknowledge that  symptoms following surgery are relieved only to recur after a variable period. The causes may include insufficient removal of disc material and further extrusion, rupture of another disc, adhesions about the nerve root and formation of an osteophyte at the site of removal of bone. Even a successful disc removal  does not guarantee a permanent cure as fibrosis can produce a dense constricting scar tissue, which is presumed to be a prime cause of recurrent symptoms(NFD . v. Illescas, G.R. No. 183054, September 29, 2010.)

Surgery can never stop the pathological process nor restore the back to its previous state. Similar poor results have been found with repeated attempts at surgical intervention for the relief of chronic low back pain. If long term relief is desired, continued mechanical stress of postural or occupational type must be avoided.

Resuming a seafarer’s  usual work, which includes increased loading, twisting, or bending and extension of the back, will further expose him  to dangers of  aggravating his medical condition. 

(Atty. Gorecho heads the seafarers’ division of the  Sapalo Velez Bundang Bulilan  law offices. For comments, email info@sapalovelez.com, or call 09175025808 or 09088665786)

Stroke and seafarer's stress

A seafarer who suffered stroke on board the vessel must be compensated due to work-related stress.

 In the case of  Magsaysay Mitsui OSK Marine, Inc, v. Bengson (G.R. No. 198528, October 13, 2014⁾  disregarded the employer’s   claim that the seafarer’s hypertensive cardio-vascular disease is not compensable on the sole basis of its company-designated physician’s declaration that such illness is not work-related.

The Supreme Court ruled that the seafarer’s  illness, which has likewise been diagnosed as intracerebral hemorrhage or hemorrhagic stroke, is a serious condition, and could be deadly.

The Supreme Court noted  that the  seafarer has been working for the company since 1988 and has been serving as Third Mate for twelve (12) years.  

Having worked for the principal  since 1988 under employment contracts that were continuously renewed, it can be said that the seafarer  spent much of his productive years with the principal; his years of service certainly took a toll on his body, and he could not have contracted his illness elsewhere except while working for the principal. 

As Third Mate, he was saddled with heavy responsibilities relative to navigation of the vessel, ship safety and management of emergencies. 

The seafarer  was subjected to physical and mental stress and strain: as Third Mate, he is the ship’s fourth in command, and he is the ship’s safety officer; these responsibilities have been heavy burdens on his shoulders all these years, and certainly contributed to the development of his illness. 

Besides, it is already recognized that any kind of work or labor produces stress and strain normally resulting in wear and tear of the human body.

An overseas worker, having to ward off homesickness by reason of being physically separated from his family for the entire duration of his contract, bears a great degree of emotional strain while making an effort to perform his work well.

The strain is even greater in the case of a seafarer who is constantly subjected to the perils of the sea while at work abroad and away from his family.c

The Court has ruled that the list of illnesses/diseases in Section 32-A of the  POEA Standard Employment Contract (SEC) does not preclude other illnesses/diseases not so listed from being compensable. The POEA contract  cannot be presumed to contain all the possible injuries that render a seafarer unfit for further sea duties.   And equally significant, it is not the injury which is compensated, but rather it is the incapacity to work resulting in the impairment of one’s earning capacity.

An employee’s disability becomes permanent and total when so declared by the company-designated physician, or, in case of absence of such a declaration either of fitness or permanent total disability, upon the lapse of the 120 or 240-day treatment period while the employee’s disability continues and he is unable to engage in gainful employment during such period, and the company-designated physician fails to arrive at a definite assessment of the employee’s fitness or disability.

In many cases decided in the past, the Supreme  Court has held that cardiovascular disease, coronary artery disease, and other heart-related  ailments (including stroke)  are compensable. 

Thus, in Fil-Pride Shipping Co., Inc. v. Balasta, (G.R. No. 193047, March 3, 2014) severe 3-vessel coronary artery disease which the seaman contracted while serving as Able Seaman was considered an occupational disease.  In Villanueva, Sr. v. Baliwag Navigation, Inc., (702 SCRA 311).  it was held that the 2000 POEA-SEC considers heart disease as an occupational disease. 

 In Jebsens Maritime, Inc. v. Undag (662 SCRA 670) the Court held that hypertensive cardiovascular disease may be a compensable illness, upon proof.  In Oriental Shipmgt. Co., Inc. v. Bastol ( 622 SCRA 352) and Heirs of the late Aniban v. NLRC (347 Phil. 46)  it was held that myocardial infarction as a disease or cause of death is compensable, such being occupational.  Iloreta v. Philippine Transmarine Carriers, Inc (607 SCRA 796)  held that hypertensive cardiovascular disease/coronary artery disease and chronic stable angina are compensable.  

Micronesia Resources v. Cantomayor (552 Phil. 130)  stated that a finding of coronary artery disease entitles the claimant – a seaman Third Officer – to disability compensation.  In Remigio v .NLRC (521 Phil. 330) the Court held that the claimant – a musician on board an ocean-going vessel – was entitled to recover for suffering from coronary artery disease.  In Sepulveda v. ECC, (174 Phil. 242) it was declared that the employee’s illness, myocardial infarction, was directly brought about by his employment as schoolteacher or was a result of the nature of such employment.

 (Atty. Gorecho heads the seafarers’ division of the  Sapalo Velez Bundang Bulilan  law offices. For comments, email info@sapalovelez.com, or call 09175025808 or 09088665786)

Jurisdiction for crimes committed at sea

Here is an interesting piece which I lifted from the website of Australian parliament  (https://www.aph.gov.au)   with respect to crimes committed at sea. I just replaced Australia with the word State.

Enforcement jurisdiction is the ability of a country to legally arrest, try, or convict  an individual for a breach of its laws.

Crimes committed at sea present a ‘dynamic legal scenario’ where international law recognizes a multitude of domestic jurisdictions existing concurrently. At all times, a ship is subject to the domestic laws of the country in which it is registered, but it can also be within the territorial jurisdiction of another country whilst transiting its waters and in its ports, and thereby subject to that second country’s laws. Further, where a citizen is involved in a criminal offence, either as an alleged perpetrator or as a victim, their country of citizenship is recognized under international law as also having jurisdiction to investigate and prosecute the crime. A criminal act committed on board will therefore often lead to potentially competing jurisdictional claims

Enforcement jurisdiction under international law

A country will only be entitled to prosecute a crime (exercising enforcement jurisdiction) if it has recognized  grounds to claim jurisdiction over the event in international law, and its domestic law expressly asserts that jurisdiction.

As a matter of general international law, a country may invoke jurisdiction – and apply its domestic laws and enforce sanctions for criminal conduct – in a variety of circumstances, including:

a.           - where criminal conduct occurs within their territory (territorial principle);

b.       -     where one of their citizens is involved (for example, as either a victim or perpetrator) in the crime (nationality principle and the passive personality principle);

c.              where the conduct is so heinous and so widely condemned that all nations proscribe and punish its occurrence (for example, piracy, genocide and hostage taking) (universal principle);

d.            where the criminal conduct has a significantly adverse impact on its national security or governmental process (protective principle).

United Nations Convention on the Law of the Sea 1982 (UNCLOS)

The international rules and principles governing the regulation of ocean space are captured by UNCLOS. UNCLOS accords countries with specific jurisdictional zones and corresponding rights in ocean space adjacent to their territory. Territorial jurisdiction operates like concentric circles, ranging from full territorial sovereignty within internal waters, to almost no sovereign rights on the high seas. These maritime zones are measured from the Territorial Sea Baseline (TSB), the low-water line along the coast.

Under UNCLOS, the zones in which a state  can exercise its territorial jurisdiction can be classified in the following order (with diminishing capacity to enforce domestic law the further out from the TSB):

a.        Internal waters (all waters landward of the TSB);

b.       Territorial sea (12 nautical miles (nm) from the TSB)

c.       Contiguous zone (from 12nm to 24nm from the TSB);

d.       Exclusive economic zone (no further than 200nm from the TSB);

e.       Continental shelf; and

f.        High seas.

High seas, or ‘international waters’, are ‘open to all States, whether coastal or land-locked’. International waters are considered to be outside the territorial jurisdiction of any country. However, in limited circumstances, the state  may exercise extra-territorial jurisdiction.

Territorial jurisdiction

 There are two categories of territorial jurisdiction that would allow a country to enforce its criminal laws against an alleged criminal act committed whilst at sea: Port State jurisdiction and Coastal State jurisdiction. Jurisdiction beyond these two categories – in the ‘contiguous zone’ and the ‘exclusive economic zone’ – is severely limited.

Port state jurisdiction

 If a criminal act occurred when the ship is in internal waters (all waters landward of the TSB) having visited a port or about to visit a port, or when the ship has departed the port and is now in the territorial sea of the state(12nm from the TSB), then the state can claim jurisdiction over the alleged criminal offence, provided that the relevant criminal legislation expresses its extra-territorial application.

Coastal state jurisdiction

Under limited circumstances, a coastal State may exercise its territorial jurisdiction if the ship is not visiting a port of that State but is travelling through its territorial sea (out to 12 nm from the TSB).

 UNCLOS provides that a State may only exercise this type of jurisdiction where:

1.       - The ‘consequences’ of the crime extends to the coastal State;

2.       - Is of a kind to disturb the peace of the State or the good order of the State’s territorial sea; 

 I     - if the assistance of the State is requested by the Master of the Ship; or

3.       - The matter involves the specific case of the illicit traffic of narcotic drugs.

Jurisdiction based on the nationality of the accused or victim

A  state    may claim jurisdiction under general international law where its  citizen is either an accused or a victim of the alleged crime. These are understood as the nationality principle and the passive personality principle respectively. International law provides that when a criminal act is committed by its citizen, the latter’s  state has the power to prosecute that citizen according to its domestic laws no matter where the crime took place The passive personality principle provides for the state  to prosecute crimes committed against its own citizens outside its territory under certain circumstances.

Flag state jurisdiction

Under UNCLOS,  the flag state (the country in which the ship is registered) has primary responsibility over its ship, including criminal jurisdiction, even when the ship is outside the flag state’s territorial waters. A general principle is that the internal operation of a ship which is regulated by the laws of a foreign state on an ongoing basis, as ships move around the world and the general law that the flag state has primacy of jurisdiction on the high seas.

However, given that vessels are generally flagged in distant states, flag states’ ability to play an active role in investigations and/or prosecutions can be extremely limited.

Osteoarthritis as a compensable seafarer’s illness

Degenerative changes of the spine, also known as osteoarthritis, is considered as a work-related.   due to the seafarer’s performance of  tasks that clearly involved unduly heavy physical labor  and  joint   strain.  

A job of a seafarer is not exactly a walk in the park.  He performs duties and responsibilities as instructed or as necessary. The job obviously entails laborious manual tasks conducted in a moving ship, which makes for increased work-related stress aside from exposure to fluctuating temperatures caused by variant weather changes. 

The compensability of osteoarthritis was favorably ruled upon by The Supreme Court in the case of   Oscar  D.  Gamboa vs. Maunlad Trans. Inc ( G.R. No. 232905, August 20, 2016)

Seafarer  Gamboa  entered into a nine (9)-month contract of employment as Bosun on board the vessel, MV OrienteShine, a cargo vessel transporting logs from Westminster, Canada to several Asian countries

During the voyage, the seafarer slipped and lost his footing while going down the ship's galley, which caused awrithing pain on the upper left side of his back. The ship master initially  gave him Salonpas for his back. Due to  experienced back pain and difficulty in breathing,   the captain  was prompted to disembark him for medical consultation in Canada.  While the foreign port doctor  took note of the seafarer's back pain, it was his diagnosed asthma thatprompted the said doctor to declare him unfit for duty.  The seafarer  was medically repatriated

Subsequent check-ups in the Philippines noted   that the seafarer was suffering from "Degenerative  Changes, Thoracolumbar  Spine" and was found to have a "metallic foreign body on the anterior cervical area noted on x-ray”. The company-designated physician opined this illness  as  not related to the cause of the seafarer's repatriation.

The company denied liability for payment of the seafarer’s disability benefits. They alleged  his osteoarthritis  was declared to be not work-related by the specialist since it may have occurred overtime and could not have developed during his 22-day stay on board the vessel, hence, was a pre-existing condition.

The entitlement of a seafarer on overseas employment to disability benefits is governed by law, by the parties'contracts, and by the medical findings.

The POEA contract  governs the procedure for compensation and benefits for a work-related injury or illness suffered by a seafarer on board sea-going vessels during the term of his employment contract. A "work-related" illness is defined as "any sickness as a result of an occupational disease listed under Section 32-A of this Contract with the conditions set therein satisfied.

Osteoarthritis is associated with a breakdown of cartilage in joints and can occur in almost any joint in the body. It commonly occurs in the weight-bearing joints of the hips, knees, and spine. Osteoarthritis occurs when the cartilage that cushions the ends of bones in the  joints gradually deteriorates. Cartilage is a firm, slippery tissue that permits nearly frictionless joint motion. The slick surface of the cartilage becomes rough. Eventually, if the cartilage wears down completely, one  may be left with bone rubbing on bone.

At any rate, in medical parlance, spinal disc degeneration/desiccation and osteoarthritis can be taken as the same. Degenerative disc disease is a spinal condition caused by the breakdown of the intervertebral discs which results in the loss of flexibility and ability to cushion the spine.33 When discs degenerate, the vertebral bodies become closer together and this increased bone on bone friction causes the wearing away of protective cartilage and results in the condition known as osteoarthritis.34 The degenerating discs place excessive stress on the joints of the spine and the supporting ligaments, which, overtime, can lead to the formation of osteoarthritis.35 Osteoarthritis is a stage of degenerative disc disease. (CENTENNIAL TRANSMARINE, INC vs PASTOR M. QUIAMBAO, G.R. No. 198096               July 8, 2015) 

There are conditions that should be met before an illness, such as osteoarthritis, can be considered as pre-existing, namely: (a) the advice of a medical doctor on treatment was given for such continuing illness or condition; or (b) the seafarer had been diagnosed and has knowledge of such illness or condition but failed to disclose the same during PEME, and such cannot be diagnosed during the PEME. The Supreme Court ruled that  none of these conditions had been established in this case.

The Court explained that  osteoarthritis is a listed occupational disease if the occupation involves any of the following:

a.       Joint strain from carrying heavy loads, or unduly heavy physical labor, as among laborers andmechanics;

b.      Minor or major injuries to the joint;

c.       Excessive use or constant strenuous usage of a particular joint, as among sportsmen,particularly  those  who  have  engaged  in  the  more  active sports  activities;

d.      Extreme temperature changes (humidity, heat and cold exposures) and;

e.       Faulty work posture or use of vibratory tools

The seafarer, as Bosun of the principal’s  cargo vessel that transported logs, undeniably performed tasks that clearly involved unduly heavy physical labor  and  joint   strain.  

The  Court declared that the seafarer's sustained back injury was not the result of an accident but nonetheless ordered the payment of his disability in accordance with the provisions of the Collective Bargaining Agreement (CBA.)

(Atty. Gorecho heads the seafarers’ division of the  Sapalo Velez Bundang Bulilan  law offices. For comments, email info@sapalovelez.com, or call 09175025808 or 09088665786)

Filipino seafarers are not probationary employees

Filipino seafarers are  not probationary employees in connection with dismissal cases.  

In  Dante de la Cruz vs. Maersk Filipinas Crewing, Inc.  (G.R. No. 172038 April 14, 2008)  the company insisted that the dismissal of the seafarer is proper as he  was then still on probationary status. This  entitled them to dismiss him in accordance with the provisions of Collective Bargaining Agreement (CBA) which allows the master to terminate the contract of one under probation by merely serving a written notice 14 days prior to the contemplated discharge.  

       The Supreme Court explained that seafarers are not covered by the term regular employment, as defined under Article 280 of the Labor Code (Coyoca v. National Labor Relations Commission. 312 Phil 1137)

 Instead, they are considered contractual employees whose rights and obligations are governed primarily by the POEA Standard Employment Contract for Filipino Seamen (POEA Standard Employment Contract), the Rules and Regulations Governing Overseas Employment, and, more importantly, by Republic Act No. 8042, otherwise known as The Migrant Workers and Overseas Filipinos Act of 1995.

 Even the POEA Standard Employment Contract itself mandates that in no case shall a contract of employment concerning seafarer exceed 12 months.

        It is an accepted maritime industry practice that the employment of seafarers is for a fixed period only. The Court acknowledges this to be for the mutual interest of both the seafarer and the employer. Seafarers cannot stay for a long and indefinite period of time at sea as limited access to shore activity during their employment has been shown to adversely affect them. Furthermore, the diversity in nationality, culture and language among the crew necessitates the limitation of the period of employment.

The Court noted that the CBA cannot override the provisions of the POEA Standard Employment Contract. The law is read into, and forms part of, contracts. And provisions in a contract are valid only if they are not contrary to law, morals, good customs, public order or public policy.

In Millares v. NLRC (434 Phil 524),   the  Court had occasion to rule on the use of the terms “permanent and probationary masters and employees” vis-à-vis contracts of enlistment of seafarers. In that case, petitioners made much of the fact that they were continually re-hired for 20 years by  the company . By such circumstances, they claimed to have acquired regular status with all the rights and benefits appurtenant thereto.  The reference to permanent and probationary masters and employees was a misnomer. It did not change the fact that the contract for employment was for a definite period of time. In using the terms “probationary” and “permanent” vis-à-vis seafarers, what was really meant was “eligible for re-hire.”

(Atty. Gorecho heads the seafarers’ division of the  Sapalo Velez Bundang Bulilan  law offices. For comments, email info@sapalovelez.com, or call 09175025808 or 09088665786)